A Look At Non Insane Automatism

Before giving a general introduction on automatism, it is necessary for one to get to know about the elements required for the establishment of an offence. As a general rule, an offence can only be established if the elements of actus reus and mens rea are satisified. Atus reus is the guilty act whilst mens rea is the guilty mind. Under the element of actus reus there are three sub-elements which are unlawful act, consequence and surrounding circumstances. The focus is on the unlawful act and consequence elements.

An unlawful act is a conscious voluntary movement of muscles which is prohibited by law. Key words are conscious, voluntary and movement of muscles. Conscious and voluntary are not the same as a person may know that he is doing an act but does not do it voluntarily. For instance, when A holds B’s hand to slap C, there are consciousness and movement of muscles on part of B but not voluntariness, for B’s action is due to an exert of force by A, B could not control the movement of his muscles.

Automatism attacks the unlawful act element. Automatism was defined by Lord Denning as an act which is done by the muscles without any control by the mind or an act done by a person who is not conscious of what he is doing. Automatism can be divided into two categories: mental and physical involuntariness.

Mental involuntariness is where there is only movement of muscles but not consciousness and voluntariness such as under the condition of sleepwalking. Physical involuntariness exists where there are consciousness and movement of muscles, but not voluntariness. Which means the person knows what he is doing but does not do it voluntarily.

Under Hill v Baxter, the defendant was attacked by a swarm of bees. The defendant turned his car to another direction, causing the accident. The defendant was held not to be liable, as his action was a reflex action. A reflex action is good evidence for proving physical involuntariness. Note however in the Australian case Ryan v The Queen, the defendant was held to be liable for shooting, even though it was a mere reflex action. The act of unloading the gun and removing its safety before the accident indicated the defendant’s intention (voluntariness) in using the gun, if the situation required. Since voluntariness was found, the defendant could not rely on automatism. On the other hand it is only a persuasive authority, since automatism strikes out voluntariness, without which there could be no actus reus.

However, to rely on mental involuntariness, three requirements must be satisfied. They are a) involuntariness, b) complete destruction of voluntary control, c) defendant must not be reckless. Whilst the element of involuntariness is discussed above, for the second element to be satisfied, complete destruction of voluntary control (both conscious and subconscious) has to be established. For instance, if R was driving a car and fell asleep, he could not claim that he had no consciousness, as his ability to follow instructions signifies that his subconscious mind was still working. The longer the period to follow instructions – the easier it is to prove consciousness.

The third element is absence of recklessness in getting into the state of automatism. Under R v Bailey, the courts had made the sharp distinction between automatism, resulting from voluntary intoxication of dangerous drugs and alcohol and automatism resulting from failure to take sufficient food for a patient suffering from hypoglycaemia. The courts held that recklessness can only be established, if the defendant himself appreciates the risk he is running, but nevertheless deliberately runs the risk. The test here is subjective.

In other words, this signifies that, if the defendant fails to take sufficient food after taking insulin and go on to attack people, then he will not be held liable for being reckless and he can still rely on automatism. But if the same thing happens again for the second time, then he will be regarded as being reckless, since after the first time of committing the offence the defendant should have known that he would react in such a way as to attack people, hence he is expected to take extra precaution to prevent such a situation. Failure on the part of the defendant to do so will render the courts to hold him as being reckless.

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